While treaties can be notoriously difficult to amend by formal means, they must nevertheless be adapted over time in order to remain useful. Herein lies the role of subsequent practice as a key tool for treaty change. Subsequent practice-a well-established means of treaty interpretation-sometimes diverges from the original treaty provision to such an extent that it can no longer be said to constitute an act of interpretation or application. Rather, it becomes, in effect, one of treaty modification.

The modification of treaties by subsequent practice extends to all fields of international law, from the law of the sea, environmental law, and investment law, to human rights and humanitarian law. Such modifications can have significant practical consequences, from revising or creating new rights and obligations, to establishing new institutional mechanisms. Determining when and how treaty modification by subsequent practice occurs poses difficulty to legal scholars and dispute settlement bodies alike, and impacts States' expectations as to their treaty obligations. This significant yet underexplored process is the focus of this book.

Modification of Treaties by Subsequent Practice proves that subsequent practice can-under carefully defined conditions that ensure strict accordance with the will of the treaty parties-alter, supplement, and terminate treaty provisions or even entire treaty frameworks. It can also generate customary law and fuel regime interaction. Ultimately, this book demonstrates the relevance and dynamism of the process of treaty modification by subsequent practice, emphasizing the need to deal with the issue head on, and explains-on a theoretical and practical level-how it can be identified and dealt with more consistently in the future. The book thus contributes to a deeper understanding of the process of treaty modification by subsequent practice and its continued role in striking the judicious balance between the stability of treaties on the one hand, and the organic evolution of the law on the other.

Friday, April 27, 2018

On May 10-11, 2018, the Law and NCD Unit of the University of Liverpool will host a conference on "International Investment Law and NCD Prevention." The program is here. Here's the idea:

Non-communicable diseases (NCDs) are responsible for almost 70% of all deaths worldwide. Almost three quarters of all NCD deaths, and 82% of the 16 million premature deaths, occur in low- and middle-income countries. NCDs have devastating consequences for individuals, families and communities; they threaten to overwhelm health systems; and they hinder development.

Since the first UN High Level Meeting on NCDs in 2011, the international community has acknowledged the scope of the problem and undertaken to take coordinated and coherent action to reduce the burden of NCDs. In particular, the WHO Global Action Plan on the Prevention and Control of NCDs for 2013-2020 lays down the foundation for the adoption of effective strategies intended to reduce the availability, acceptability and affordability of tobacco products, alcoholic beverages and unhealthy food, which include the adoption of marketing restrictions, labelling rules and fiscal measures. More recently, States renewed their commitment to “ensure healthy lives and promote well-being for all at all ages” and “reduce premature deaths from NCDs by one-third by 2030” (Sustainable Development Goal 3). In September 2018, the third UN High Level Meeting on NCDs will assess the progress that States have made towards their commitment to reduce the burden of NCDs.

Over the last thirty years, globalisation and economic liberalisation have greatly increased foreign direct investment in the tobacco, alcohol and food industries. Foreign investors enjoy certain protections under international investment agreements which empower them to bring compensation claims against host states for any measure that interferes with foreign investment. Thus, state efforts to regulate the tobacco, alcohol and food industries to prevent NCDs and promote public health could give rise to expensive arbitrations, as illustrated by recent claims challenging tobacco control legislation in Australia and Uruguay. The regulation of alcoholic beverages and unhealthy food could face similar challenges under international investment law. This raises important and timely questions about how international investment law can affect state regulatory autonomy in designing and implementing measures for preventing NCDs.

The Law & NCD Unit at the University of Liverpool is organising a one-and-a-half day conference to discuss these questions and explore the relationship between the NCD prevention policies and international investment law.

Central to the project is the convening of a high level advanced seminar in Leiden from 30 May to 2 May 2018. Amongst the primary objectives of the advanced seminar is to move beyond the usual focus of international law on the destruction and threat to heritage in the context of armed conflict, to also include an examination of heritage destruction in peacetime, and the role of human rights law in this regard.
Normative developments in international cultural heritage law increasingly advocate a human rights approach to heritage. Likewise in heritage studies, there has been a proliferation and assertion of ‘rights’ in relation to heritage protection. Yet ascertaining the exact nature of these rights remains a challenge, especially in terms of accessing justice for heritage destruction beyond the framework of international criminal law. For example, what happens when heritage is under threat in peacetime by the very state charged with its protection? Human rights are by nature limited by their focus on individual rights. Yet heritage is a collective good, and as such, cannot be measured in terms of personal injury in the same way that the loss of property can. As a consequence, it is difficult to make a case before a human rights court for heritage destruction, even though cultural heritage forms an inherent part of cultural rights. By scrutinizing the various areas of international law and governance dealing with heritage destruction, the advanced seminar hopes to consider creative ways as to how the protection of important heritage sites and landscapes can be advanced beyond rhetoric.

The symposium will begin in the afternoon of 30 April with a keynote address by Prof. Francesco Francioni on the question of, “Is International Law Ready for the Recognition of a General Obligation to Prevent and Avoid Destruction of Cultural Heritage?”.

Evidence in International Investment Arbitration is a guide for practitioners representing a party in investment arbitration disputes, whilst also offering academics a perspective on the practical elements affecting the treatment of evidence in the area. The book is the first of its kind to systematically review the jurisprudence of investor-state tribunals on evidentiary matters and inductively establish the rules recognized in those decisions. It uses a comparative approach to demonstrate the points of commonality and uniformity in the transnational foundations of the law of evidence as it affects international investment arbitration, providing theoretical and practical guidance on the treatment of evidence at all stages of such disputes.

The work establishes the rules of evidence as currently recognized by investor-state arbitral jurisprudence and examines these rules of evidence against those recognized in the traditional rules of international law, as well as against those codified by the IBA Rules on the Taking of Evidence in International Arbitration. It examines the theory and function of international investment law dispute resolution against which the role of evidence must be assessed; practical management of the evidence-gathering process in investment arbitration disputes; and what to anticipate as challenges in the gathering and pleading of evidence in these disputes. Chapters cover a broad range of evidence-based topics, including: burden and standard of proof, presumptions and inferences, witness and expert evidence, exclusionary rules including privileged and confidential documents, and annulment.

Despite Antarctica’s isolation, the Anthropocene’s signature is inscribed deeply there, from the ozone hole etched in the southern sky to the cleaving of the ice shelves into the Southern Ocean. The Antarctic Treaty sought to quarantine Antarctica from the nuclear technologies that heralded the advent of the Anthropocene, and the Antarctic Treaty System (ATS) is imbued with a romantic environmental ideal of Antarctica as a pristine wilderness that needs only to be left alone to be protected. But in the Anthropocene it is the global forces let loose by human hands that are transforming Antarctica, rather than any activities on the continent itself. What does this mean for our legal imaginings of Antarctica and the Southern Ocean? What might an ATS that understands and responds to the challenges of the Anthropocene look like?

This chapter examines the domestic origins of the canons of construction used in treaty interpretation. It shows that these canons typically draw on domestic principles for statutory and contractual interpretation. Section I surveys general themes emerging from specific canons of construction, and provides a summary of some key links between the canons of construction and foundational sources such as the Roman Law Digest and the work of early international lawyers, such as Grotius, Pufendorf, and de Vattel.

Section II then zooms into some specific canons and their domestic origins. It examines the links that each canon has to the common and civil law traditions (and other sources), and the extent to which international tribunals have acknowledged the domestic origins of these canons. Just like national courts unconsciously rely on contract and statutory analogies in interpreting treaties, this section shows that international courts and tribunals often rely on these canons without awareness of their domestic origins, and even though they are not found explicitly in the Vienna Convention on the Law of Treaties.

It was not too long ago, in the days, months and years following the collapse of the Berlin Wall, that many prominent "internationalists" (lawyers and international relations theorists alike) were relishing the end, or death, of state sovereignty - or at the very least ushering in the concept's twilight years. Fast forward to the present, however, and the geo-political climate at the start of 2018 seems only to highlight the naivety of this assumption and the continuing longevity of the idea of sovereignty and the importance of states' political independence. Under a rising tide of populist nationalism in the West and a resurgence of authoritarianism among existing and emerging superpowers in the East, sovereigntist rhetoric continues to play out in self-determination struggles, as well as mooted withdrawals from international institutions like the European Union and the International Criminal Court - institutions championed very much in opposition to the worst excesses of state sovereignty.

With this background in mind, the 2018 Workshop on Theory and International Law aims to re-engage the concept of sovereignty in contemporary international law, inviting contributions which relate to the (contested) nature or evolving meaning of state sovereignty, as well as how the concept manifests in relation to specific areas of international law and institutional practice, including e.g. statehood and self-determination struggles, membership and withdrawal of international organisations, etc.

As in the past, this year's WTO Conference will explore emerging ideas and developments in international trade law. It will bring together leading academics and practitioners to discuss the implications of recent global developments.
2018 has seen great challenges and debates concerning the validity of WTO law and its very foundation. This year's BIICL WTO Conference will debate some of the most important current academic and practical issues with topics ranging from Brexit to the active undermining of the international legal trade order by some of its founding members. New topics will also be debated such as trade and climate change. The founding of the WTO in 1994 and, before it, the establishment of the GATT 1947 have provided the legal framework for the rules-based international trading system. The BIICL WTO Conference takes place at a critical crossroad where this system may either be affirmed and strengthened or undermined by a resurgence of economic nationalism and new barriers to trade. This conference is of high practical value as the UK prepares to leave the European Union. As such legal practitioners will have to take WTO rules more directly into account when advising international companies and actors.

A reminder that a call for papers has been issued for a workshop on "Rethinking Reparation in International Law," to take place in November 2018, at the Lauterpacht Centre for International Law. The deadline is April 30, 2018. Here's the call:

Call for Papers: Rethinking Reparations in International Law

What role do reparations play in international law today? What is the theory behind reparations in different areas/systems of international law? Do reparations play a different role in different areas of international law (human rights, investment law)? How are reparations chosen by judges and arbitrators and how are damages calculated? What is the link between efficiency and reparations? How can reparations be made more efficient? How do judges/arbitrators understand their role in relation to reparations?

These questions will be at the centre of an ESIL-sponsored workshop held at the Lauterpacht Centre, University of Cambridge in November 2018. The workshop will seek to address the recent developments and scholarship in the area of reparations (remedies) in international law. It will bring together scholars writing on theory of reparations, those conducting empirical or comparative research, as well as practitioners, judges and arbitrators. The aim is to provide a platform for discussion of new ideas about efficiency of reparations in international law.

At this point, we would like to invite scholars and practitioners working in the area, to submit a max. 400-word abstract to Dr Veronika Fikfak at vf243@cam.ac.uk. The deadline for submission is 30 April 2018. Abstracts will be selected by early June. Papers for the workshop will have to be submitted by mid-September.

The workshop is part of a larger project on Damages for Human Rights Violations funded by the ESRC. It is organised by Dr Veronika Fikfak, Lauterpacht Centre, University of Cambridge and Professor Photini Pazartzis, Athens Public International Law Centre, National & Kapodistrian University of Athens. The aim is to publish suitable contributions as an edited collection or special edition of an international journal. Papers with an empirical or comparative approach are particularly welcome.

Bella Kovner & Nadera Shalhoub-Kevorkian, Children, human rights organisations, and the law under occupation: the case of Palestinian children in East Jerusalem

Westmin R.A. James, In search of progress: the implications of Caleb Orozco v. AG of Belize for the Commonwealth Caribbean

Morten Broberg & Hans-Otto Sano, Strengths and weaknesses in a human rights-based approach to international development – an analysis of a rights-based approach to development assistance based on practical experiences